The federal government shutdown is now on its third week, and at the 18th day, it is now the second longest since 1977. In three days, it will be as long as the Gingrich Shutdown in 1995 which lasted for 21 days. If the government is not reopened by this Friday, the Trump Shutdown will become the longest shutdown in over 40 years. Quick call Senate Majority Leader Mitch McConnell (touting his clout in DC) or tweet to @senatemajldr felicitations and congratulations for his exceptional non-adherence to the Framers’ system of checks and balances at this bonkers moment in history.

In March, we blogged about the proposed funding cuts by the Trump Administration on the FY2017 budget. The fiscal year ends on September 30, 2017 (see Trump Seeks Further Funding Cuts From @StateDept/@USAID, This Time From 2017 Budget). WaPo reports that an agreement was reached last night for a spending package to fund the federal government through the end of the fiscal year. “The House and Senate are expected to vote on the package early this week. The bipartisan agreement includes $12.5 billion in new military spending and $1.5 billion more for border security, a major priority for Republican leaders in Congress.”

Below are some of the notable elements included in the bill. We have not compared this with the Trump wish list for cuts in FY17 but we note that Trump’s proposal included reduction in Educational and Cultural Exchanges and in this spending agreement the Committees on Appropriations specifically recognize the unique role of educational and cultural exchanges, and provided additional funding for certain educational and cultural exchange programs. Power of the purse. Excerpted from DIVISION J – STATEFOPs SOM OCR FY17:

Diplomatic and Consular Programs: The Act provides $6,147,254,000 for Diplomatie and Consular Programs in this title, and an additional $2,410,386,000 in title VIII under this heading is designated for OCO/GWOT pursuant to BBEDCA. Within the total provided under this heading in this title, up to $1,899,479,000 is for Worldwide Security Protection (WSP) and may remain available until expended; and $4,247,775,000 is for operations, ofwhich $637,166,000 may remain available until September 30, 2018. Not later than September 1, 2017, the Secretary of State is directed to report to the Committees on Appropriations on projected amounts available for operations beyond fiscal year 2017 by category and bureau. Title VIII ofthis Act includes funds for embassy operations in Afghanistan, Pakistan, and Iraq and other areas of unrest.

No funding for new, non-security positions: Act does not include funding for any new, non-security positions, unless specifically noted herein. The Secretary of State may fill existing positions that become vacant due to attrition, as needed. If the Secretary intends to create and fill new positions, 15 days prior to posting such positions or filling such positions with internai candidates the Secretary shall submit to the Committees on Appropriations a reprogramming request which shall inelude for each new position: a justification; a description of the job duties; the estimated fiscal years 20 17 and 2018 costs; and the funding sources to be used for such costs, including funds to be reallocated from savings due to the elimination of other positions, contract services, and other reductions or cost saving measures.

The agreement includes sufficient funds to support the authorized positions for the Bureau of Intelligence and Research in fiscal year 2017.

Training Requirements: The Secretary of State shall ensure that all security-cleared employees comply with training requirements for the classifying, safeguarding, and declassifying of national security information in accordance with Executive Order 13526: Classified National Security Information, as appropriate.

What’s with this? The Secretary of State is directed to identify the embassies or consulates that did not regularly utilize the Department of State’s model visa denialletter in fiscal year 2016, and include such information in the report required by the House report under the heading Border Security Program, Visa processing and training.

FASTC Reporting Requirement: Not later than 45 days after enactment of this Act, the Secretary of State shall submit to the Committees on Appropriations a progress report on the Foreign Affairs Security Training Center project. Such report shall be updated and submitted to such Committees semi-annually until completion ofthe project. The report shall include the requirements described under this heading in the House and Senate reports.

Holocaust Issues: The Secretary of State is directed to implement directives under this heading in the House report and the Introduction to the Senate report concerning atrocity prevention, including continued support for the Atrocities Prevention Board and the Office of the Special Envoy for Holocaust Issues.

Anti-Semitism: The Secretary of State is directed to fill the position of Special Envoy to Monitor and Combat Anti-Semitism authorized by Public Law 108-332 in a timely manner.

Trafficking in Persons: The agreement includes $12,500,000 for the Office to Monitor and Combat Trafficking in Persons for support of activities and directives described in the House and Senate reports.

Workforce Diversity: The Secretary of State is directed to continue the workforce diversity initiatives described under this heading in the House and Senate reports.

Public Diplomacy: The agreement includes sufficient funds to support public diplomacy programs at not less than the fiscal year 2016 level. In addition, the Secretary of State is directed to inelude projected funding levels for public diplomacy in the operating plan required by section 7076(a) ofthis Act.

WHTI Surcharge: Section 7034(k)(1) ofthis Act extends for one year the Western Hemisphere Travel Initiative surcharge authority, which is the same extension of authority included in prior fiscal years.

OCP: Section 7034(k)(4) of this Act continues the Foreign Service overseas pay comparability authority, but, as in prior fiscal years, prohibits implementation of the third phase ofthe authority.

Discrimination/Abuse Prevention: The Secretary of State is directed to implement the recommendations in the Senate report regarding prevention of discrimination and abuse under this heading and the Operating Expenses heading.

Additional Funds for Educational and Cultural Exchanges: Committees on Appropriations recognize the unique role of educational and cultural exchanges for advancing American leadership and ideals abroad. Department of State funded exchanges are an important instrument of United States foreign policy and diplomacy efforts, and promote United States security interests. To that end, the agreement includes additional funding for certain educational and cultural exchange programs. Funds made available for the Citizen Exchange Program that are above the fiscal year 2016 program plan are intended for the purposes described under this heading in the House and Senate reports.

Embassy Security, Construction, Maintenance, and NEC Vietnam: The Act provides $1,117,859,000 for Embassy Security, Construction, and Maintenance in this title, ofwhich $358,698,000 is for Worldwide Security Upgrades (WSU) and $759,161,000 is for other construction, operations, and maintenance. An additional $1,238,800,000 is provided in title VIII under this heading that is designated for OCO/GWOT pursuant to BBEDCA, ofwhich $1,228,000,000 is available for WSU.

Not later than 45 days after enactment of this Act, the Secretary of State shall report to the Committees on Appropriations on plans to construct a New Embassy Compound in Vietnam, including options for the purchase of appropriate land for such construction.

USAID: The Act provides $1,204,609,000 for Operating Expenses in this title, ofwhich

$180,691,000 may remain available until September 30, 2018, and an additional $152,080,000 in title VIII under this heading is designated for OCO/GWOT pursuant to BBEDCA.

The USAID Administrator shall ensure that all security-cleared employees comply with training requirements for the classifying, safeguarding, and declassifying of national security information in accordance with Executive Order 13526: Classified National Security Information, as appropriate.

The agreement includes $250,000 under this heading to train USAID personnel in genocide and mass atrocity prevention.

The USAID Administrator is directed to consult with the appropriate congressional committees prior to any decision to begin discussions with a foreign government regarding the closure of a USAID Mission.

Section 7081. Consular and Border Security Programs (new): The Act establishes in the Treasury a Consular and Border Security Programs account into which authorized border security program fees shall be deposited for the authorized purposesofsuchprogram. Subsection(c)doesnotincludetheexpandedauthoritycontained in the Appendix, Budget ofthe United States Govemment, Fiscal Year 2017.

Section 7083. Afghan Allies (new): The Act provides for an additional 2,500 visas for the Afghan Special Immigrant Visa program. The Secretary of State shall ensure that such visas are only issued to individuals who meet the strict qualifications ofthe program for assisting the United States Govemment in Afghanistan, and that vetting processes remain rigorous and thorough.

The Act includes funds for various countries.

Israel: The Act makes available $75,000,000 under Foreign Military Financing Program for Israel from the Security Assistance Appropriations Act, 2017 (division Bof Public Law 114-254), which is in addition to funds made available under such heading in title IV ofthis Act. The total amount provided under Foreign Military Financing Program for assistance for Israel in fiscal year 2017 is $3,175,000,000.

Burma (where no one has yet been nominated to be chief of mission): The Act provides responsibility for democracy and human rights programs in Burma to the United States Chief of Mission in Burma, in consultation with the Assistant Secretary for Democracy, Human Rights, and Labor, Department of State. Such responsibility shall include final approval for the specific uses of funds regardless of the bureau or agency managing such funds. […]Not later than 45 days after the enactment of this Act and prior to the initial obligation of funds made available for assistance for Burma, the Secretary of State shall submit a report detailing steps taken by the Government of Burma to address human rights abuses committed by the armed forces ofBurma against ethnic minorities, including the use of rape as a weapon of war.

People ‘s Republic of China: The Secretary of State and USAID Administrator are directed to provide no assistance to the central Govemment ofthe People’s Republic of China under Global Health Programs, Development Assistance, and Economie Support Fund, except for assistance to detect, prevent, and treat infectious diseases.

Philippines (whose President has been invited to the White House): Extrajudicial killings in the Philippines, particularly those committed in the conduct ofthe anti-drug campaign, call into question the commitment ofthe central Government ofthe Philippines to human rights, due process and the rule of law. The Secretary of State shall inform the Committees on Appropriations in a timely manner of the United States policy toward the Philippines, including the response to such killings. The report required in subsection (f) shall include an assessment of the following information: (1) the status of diplomatie relations between the United States and the Philippines, and significant changes in the policy ofthe Government ofthe Philippines on matters of of national interest to the Govemment ofthe United States; (2) the degree to which the Armed Forces of the Philippines (AFP) benefits from United States assistance, armaments, equipment, systems, and training; (3) the impact ofUnited States assistance on AFP modemization, maritime domain awareness, and operational capabilities ofthe Philippines Coast Guard, including to maintain an effective presence in Philippine territorial waters; (4) the impact of United States assistance on economie growth in the Philippines, including through United States-Philippines Partnership for Growth programs; (5) the importance of United States markets for Philippine exports, such as computer components, automobile parts, electrical machinery, and textiles; (6) the importance of United States foreign direct investment in the Philippines, and the influence of the United States as an investor and market for the Philippine business process outsourcing industry; (7) the economie benefit of annual remittances to the Philippines from the United States; (8) the adherence of the Govemment ofthe Philippines to the rule of law, including due process, particularly in efforts to counter illicit narcotics; (9) efforts by the Govemment ofthe Philippines to credibly investigate and prosecute individuals or organizations responsible for inciting, directing, or carrying out extra-judicial killings in the Philippines; and (10) the threat of Islamist terrorist groups in Mindanao and elsewhere in the southem region of the Philippines, and the impact of the United States military in supporting counterterrorism efforts. The Secretary of State shall also comply with the reporting requirement in the Senate report under Foreign Military Financing Program with respect to certain actions by the Govemment of the Philippines.

Countering Russian Influence Fund: The Act provides not less than $100,000,000 for the Countering Russian Influence Fund (CRIF). Funds should be made available to civil society and other organizations that seek to mitigate the expansion of such influence and aggression, including through public awareness campaigns and exchange activities. The Secretary of State and the USAID Administrator, as appropriate, shall ensure that CRIF programs are coordinated among Federal agencies and program implementers, and that information and lessons-learned are shared. The Secretary of State shall make public!y available the report required by subsection (c)(4), except that such report may include a classified annex.

In 1976, Henry Kissinger apparently left the State Department with records of his telcons, along with his memcons and office files, at the conclusion of his tenure as the 56th Secretary of State. The National Security Archive in 2001 filed a legal complaint directed at the State Department and the National Archives “for abdicating their duty under the Federal Records Act to recover the Kissinger documents, which were produced on government time with government resources.” In March 2015, the National Security Archive again filed suit against the State Department under the Freedom of Information Act to force the release of the last 700 transcripts of Kissinger’s telephone calls (telcons). The Archive’s appeal of State’s withholding dates back to 2007. State has apparently claimed they were “pre-decisional” or covered by executive privilege — claims that the Archive says “should long since have expired in the case of 40-year-old records.”

In 2013, 67th did not have to removed her record emails since they were not even in the State Department systems. Meanwhile, the State Department will be tied up in multiple civil litigations related to these damn emails until 2055.

In any case, Congress is on it! No one will be able to do this ever again. No one, that is, until the next secretary of state maybe in 2028 … and it’ll be for something similar to the telephones, or emails, but different; perhaps out of a new technology that is yet to be invented… records retention for lifelogging or mindprinting, anyone?

Well, here is what Congress did for now. A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes the following item on Records Management with funding restrictions on the use of email accounts and email servers created outside the .gov domain, a requirement for records management reports from both the State Department and USAID within 30 days, and a provision for withholding $10,000,000 from the “Capital Investment Fund” until the reports required are submitted to Congress.

(1) LIMITATION AND DIRECTIVES.—

(A) None of the funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II that are made available to the Department of State and USAID may be made available to support the use or establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program in contravention of the Presidential and Federal Records Act Amendments of 2014 (Public Law 113–187).

(B) The Secretary of State and USAID Administrator shall—

(i) update the policies, directives, and oversight necessary to comply with Federal statutes, regulations, and presidential executive orders and memoranda concerning the preservation of all records made or received in the conduct of official business, including record emails, instant messaging, and other online tools;
(ii) use funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II, as appropriate, to improve Federal records management pursuant to the Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) and other applicable Federal records management statutes, regulations, or policies for the Department of State and USAID;
(iii) direct departing employees that all Federal records generated by such employees, including senior officials, belong to the Federal Government; and
(iv) measurably improve the response time for identifying and retrieving Federal records.

(2) REPORT.—Not later than 30 days after enactment of this Act, the Secretary of State and USAID Administrator shall each submit a report to the Committees on Appropriations and to the National Archives and Records Administration detailing, as appropriate and where applicable—
(A) the policy of each agency regarding the use or the establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program;
(B) the extent to which each agency is in compliance with applicable Federal records management statutes, regulations, and policies; and
(C) the steps required, including steps already taken, and the associated costs, to—

(i) comply with paragraph (1)(B) of this subsection;
(ii) ensure that all employees at every level have been instructed in procedures and processes to ensure that the documentation of their official duties is captured, preserved, managed, protected, and accessible in official Government systems of the Department of State and USAID;
(iii) implement the recommendations of the Office of Inspector General, United States Department of State (OIG), in the March 2015 Review of State Messaging and Archive Retrieval Toolset and Record Email (ISP–1–15–15) and any recommendations from the OIG review of the records management practices of the Department of State requested by the Secretary on March 25, 2015, if completed;
(iv) reduce the backlog of Freedom of Information Act and Congressional oversight requests, and measurably improve the response time for answering such requests;
(v) strengthen cyber security measures to mitigate vulnerabilities, including those resulting from the use of personal email accounts or servers outside the .gov domain; and
(vi) codify in the Foreign Affairs Manual and Automated Directives System the updates referenced in paragraph (1)(B) of this subsection, where appropriate.

(3) REPORT ASSESSMENT.—Not later than 180 days after the submission of the reports required by paragraph (2), the Comptroller General of the United States, in consultation with National Archives and Records Administration, as appropriate, shall conduct an assessment of such reports, and shall consult with the Committees on Appropriations on the scope and requirements of such assessment.
(4) FUNDING.—Of funds appropriated by this Act under the heading “Capital Investment Fund” in title I, $10,000,000 shall be withheld from obligation until the Secretary submits the report required by paragraph (2).

On January 13, House Appropriations Committee Chairman Hal Rogers, Senate Appropriations Committee Chairwoman Barbara Mikulski, House Appropriations Ranking Member Nita Lowey, and Senate Appropriations Ranking Member Richard Shelby announced the release of the fiscal year 2014 consolidated appropriations bill. The bill provides $1.012 trillion for the operation of the federal government and avoids a government shutdown. The Omnibus contains all 12 regular appropriations bills for fiscal year 2014, with no area of the government functioning under a Continuing Resolution. Below is a quick summary of the FY 2014 Omnibus – State and Foreign Operations Appropriations:

The State and Foreign Operations portion of the fiscal year 2014 Omnibus contains funding to support American interests, diplomatic operations, and humanitarian assistance abroad. In total, the legislation provides $49 billion in discretionary funding – $4.3 billion less than the fiscal year 2013 enacted level.

Within the total, the bill provides full funding for embassy security – plus additional funds for upgrades of temporary missions, such as Benghazi – to prevent and protect against future terrorist attacks, unrest, and other acts of violence.

The bill also provides funding to support security and stability in the Middle East – including for our key allies such as Israel and Jordan and the frontline states of Iraq, Afghanistan, and Pakistan. For Afghanistan, the bill provides the resources needed for diplomats and development experts to operate safely, but scales back assistance programs to a more sustainable level as U.S. armed forces drawdown during 2014. In addition, contingency funding is included for other areas of conflict and emerging crises, such as Syria and Africa.

In addition, the bill prioritizes global health, humanitarian, and democracy promotion programs – while reducing funding in other lower-priority areas – to advance American interests around the globe and to fulfill the nation’s moral obligation to those in dire need.

State Department Operations and Related Agencies – The bill contains a total of $15.7 billion in base and contingency funding for operational costs of the State Department and related agencies – a decrease of $2.4 billion below the fiscal year 2013 enacted level and $1 billion less than the request. Within this total, the legislation provides $5.4 billion – $25 million above the amount requested – for embassy security costs relating to the protection of personnel and facilities.

United States Agency for International Development (USAID) Operations – The bill contains $1.3 billion for USAID operations, a reduction of $215 million from the fiscal year 2013 enacted level. Within this total, $91 million is provided for contingency funding for USAID operations in Iraq, Afghanistan, and Pakistan, and for the USAID Inspector General to conduct appropriate and rigorous oversight of U.S. taxpayer dollars in those countries.

Funding Prohibitions – The bill seeks to promote good government and rein in unnecessary spending by prohibiting or eliminating funding for a variety of projects and activities. Some include:

A prohibition on funding for the renovation of UN Headquarters in New York;

A prohibition on appropriations for a new London embassy;

Providing no funding or authorities for debt relief for foreign countries;

A prohibition on funding to move the Vatican embassy unless certain conditions are met to maintain its importance and authority;

A prohibition on aid to Libya until the Secretary of State confirms Libyan cooperation in the Benghazi investigation;

A prohibition on funding to implement the UN Arms Trade Treaty; and

Providing no funding for assessed and voluntary contributions for the UN Educational, Scientific, and Cultural Organization (UNESCO).

International Security Assistance – The bill provides a total of $8.5 billion in base and contingency funding for international security assistance. This includes funds for international narcotics control, anti-terrorism programs, nonproliferation programs, peacekeeping operations, and other critical international security and stabilization efforts. It also provides funds to support ongoing counter-narcotics and law enforcement efforts in Mexico, Colombia, and Central America.

Israel: In addition, the legislation provides security assistance to key allies, including fully funding the $3.1 billion commitment to the United States-Israel Memorandum of Understanding.

Egypt: Allows requested funds to be provided to Egypt if certain conditions are met – including maintaining the strategic relationship with the United States, upholding the peace treaty with Israel, and meeting milestones Egyptians have set for their political transition.

Palestinian Authority: The legislation stops economic assistance to the Palestinian Authority if the Palestinians obtain membership to the United Nations or UN agencies without an agreement with Israel. In addition, the bill puts new restrictions on aid if the Palestinians pursue actions against Israel at the International Criminal Court. New language is included to ensure that the Palestinian Authority is taking action to counter incitement of violence.

Afghanistan: Withholds funds for the Government of Afghanistan until certain conditions are met, including having a signed Bilateral Security Agreement and safeguards being in place to ensure that U.S. assistance is not taxed. It also withholds a portion of funds until proper security is in place for implementers of USAID and State Department programs. In addition, the legislation strengthens requirements on the rights of Afghan women and girls and combatting corruption.

According to WaPo, the measure includes $85.2 billion for military operations in Afghanistan, a $2 billion cut from fiscal 2013 due in part to ongoing troop reductions. But the agreement also withholds money for the Afghan government “until certain conditions are met,” including a decision to sign a new bilateral security agreement (via).

The bill reportedly also authorizes a 1 percent pay increase for civilian federal workers and U.S. military personnel.

Read more on State here. See the Appropriations Committee here. WaPo has a quick look at the winners and losers of the new spending bill. here.